First Amendment Claims Against Public Broadcasters

First amendment doctrine, in accommodating government regula-
tion of broadcasters, emphasizes the right of viewers and listeners to receive ideas. In determining the contours of this right, the Supreme Court
sometimes has restricted broadcasters' traditional free press rights.' As
1. Both public and commercial broadcasting differ substantially from the print media in terms
of first amendment protection from government censorship. Whereas newspaper publishers clearly
are protected from government interference by the press clause, New York Times Co. v. United
States, 403 U.S. 713, 725 (1971) (Brennan, J., concurring), all broadcasters are subject to federal
licensing requirements and content regulation by the Federal Communications Commission (FCC).
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 379-80 (1969). An interesting contrast exists
between the Supreme Court's treatment of newspaper publishers and its treatment of broadcasters,
compare Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 259 (1974) (White, J.,
("[ihe First Amendment erects a virtually insurmountable barrier between government and the
print media so far as government tampering, in advance of publication, with news and editorial
content is concerned.") and New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (Court
recognized "a profound national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open") with Red Lion, 395 U.S. at 388-89 (denial of broadcasting
license because "public interest" requires it, is not an abridgement of free speech) and Columbia
Broadcasting Sys. v. Democratic Nat'l Comm., 412 U.S. 94, 126 (1973) (limited government surveillance permitted in broadcasting media but not in private print media).
The Court's disparate treatment of the electronic media usually is explained in terms of the
historical and technological development of the industry. Congress created the FCC licensing system in the 1930s as the best possible solution to technological limitations on the availability of electromagnetic frequencies (or spectrum) for radio broadcasting and, twenty years later, television
broadcasting. See id. at 103-14; Red Lion, 395 U.S. at 375-86; National Broadcasting Co. v. United
States, 319 U.S. 190, 210-17 (1943); FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 474 (1940);
FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 137-38 (1940); see also W. VAN ALSTYNP, INTERPRETATIONS OF THE FIRST AMENDMENT 70-71 (1984). Since the airwaves were regarded as a public trust and interference from stations broadcasting on the same frequency made them useless to
everyone, the licensing solution was adopted to allocate channels in protection of the "public interest." NationalBroadcasting Co., 319 U.S. at 227 (holding that the licensing system was a proper
exercise of Congress's power over commerce and that denial of a license was not a denial of free
In response to this solution, the federal courts have developed a special, highly stylized first
amendment analysis for public and commercial broadcasters that accommodates the licensing and
regulatory authority of the FCC. Red Lion, 395 U.S. at 386; see W. VAN ALSTYNE, supra, at 73-77
(contrasting Red Lion and Miami HeraldPublishingCo. to argue that the Supreme Court has distinguished broadcasting from the traditional press); FCC v. League of Women Voters, 468 U.S. 364,
376 (1984) (Supreme Court decisions dealing with broadcasting take different approach than those
involving print media).
Vol. 1989:1386]
Justice White concluded in Red Lion Broadcasting v. FCC: "It is the
right of the viewers and listeners, not the right of the broadcasters, which
is paramount."' 2 The Supreme Court in FCCv. League of Women Voters
identified this paramount right as "the public's First Amendment interest
in receiving a balanced presentation on diverse matters of public concern."'3 By choosing this phrase, the Court captured the idea that the
public's free speech interest in broadcasting is a collective right. As the
court had suggested previously in the Red Lion case: "[T]he people as a
whole retain their interest in free speech by radio [and television] and
their collective right to have the medium function consistently with the
ends and purposes of the First Amendment." 4 Thus, in the Supreme
Court's attempts to sort out the various first amendment interests at
stake-the broadcasters' and the public's interests-the Court has settled
on protecting the public's interest primarily as a collective right of access
to a variety of ideas, rather than a right of individual access or individual
determination of program content. 5 And limited as this collective right
may be, 6 the public continues to retain it even though individual free
speech interests in broadcasting largely have been relinquished by legislative decision to a government-regulated industry.
The public's collective first amendment right is connected to the important social policy of promoting diversity on the airwaves-the same
policy motivating much of the Federal Communications Commission's
(FCC) broadcasting regulations. The market theory of ideas, a bedrock
principle of first amendment doctrine, maintains that public access to a
diversity of freely expressed ideas will advance the cause of truth, rather
than retard it. The Supreme Court, in the context of broadcast regulations, has pointed to this theory as a justification for FCC regulation
protecting the public's collective right of access:
[Because it] is the purpose of the First Amendment to preserve an
uninhibited marketplace of ideas in which truth will ultimately prevail,
...the right of the public to receive suitable access to social, political,
aesthetic, moral, and other ideas and experiences [through the medium
2. Red Lion, 395 U.S. at 390 (8-0 decision, Douglas, J., took no part in decision) (emphasis
3. League of Women Voters, 468 U.S. at 380.
4. Red Lion, 395 U.S. at 389-91 (emphasis added).
5. See also Columbia BroadcastingSys., 412 U.S. at 105, 110, 124 (rejecting full or limited
right of access and acknowledging licensees' editorial responsibilities). The interests of the individual to access ideas and select programs may be satisfied by the ever-expanding availability of channels-particularly through cable broadcasting-that allow some degree of individual preference in
program selection. See infra text accompanying notes 45-46.
6. See infra notes 115-24 and accompanying text.
[Vol. 1989:1386
of broadcasting]
is crucial here [and it] may not constitutionally be
This free market theory, however, is not entirely consistent with government regulation of broadcasting. With the interfering apparatus of government licensing and content regulation, the broadcasting media simply
cannot provide a market of ideas that is in any sense free. And the
FCC's efforts to promote public access to a variety of ideas on the airwaves have been only arguably successful, while strapping the media
with more regulation of content and increased competition for licenses. 8
Government regulation of broadcasting, through station licensing
and the content regulation that accompanies it, increasingly has come
under attack. Critics argue that broadcast regulation is not effective in
promoting free speech because regulation restricts broadcasters' exercise
of discretion in program selection, restrains broadcasters from expressing
controversial viewpoints that might offend the public or the regulators,
and no longer remains tenable based on spectrum scarcity or technological limitations.9 Some critics also propose that broadcasters should be
market participants rather than community trustees,10 since anything beyond minimal regulation is appropriate only if there is market failure in
the industry. Under this marketplace approach, the FCC would rely on
the broadcasters' ability to serve community interests through normal
market mechanisms, thereby reducing the need for government involvement and allowing the public to protect its own first amendment interests
by switching channels.
In combination with reduced regulation, courts should recognize a
cause of action based on the public's collective first amendment right.
Such a cause of action would counteract the natural advantage broadcast
licensees enjoy vis-a-vis the public in deciding what will be available on
the airwaves by enabling listeners and viewers who are affected by broadcasters' programming decisions to challenge those decisions on first
amendment grounds. By placing the initiative for redress in the hands of
parties injured by a broadcaster's decision, this cause of action would
shift some of the FCC's watchdog responsibilities to the public, whose
interest in protecting its collective right of access is the strongest. Recognition of this right would have the same purpose, the preservation of first
amendment values, as the "public interest" standard-the statutory re7. League of Women Voters, 468 U.S. at 377-78 (quoting Red Lion, 395 U.S. at 390).
8. For an extensive discussion of how the commercial broadcasting industry would benefit
from deregulation and the substitution of a market approach, see Fowler & Brenner, A Marketplace
Approach to BroadcastRegulation, 60 TEX. L. REV. 207 (1982).
9. For a general treatment of the dangers of broadcast regulation, see L. PoWE, AMERICAN
10. See Fowler & Brenner, supra note 8, at 209-10.
Vol. 1989:1386]
quirement that guides the FCC to select licensees and promulgate regula-
tions when "public convenience, interest, or necessity will be served." 1
But despite a common purpose, 12 the public interest standard differs
from a cause of action based on the public's right to a balanced presentation because the standard merely provides a constraint on agency action,
whereas a right to a balanced presentation cognizable by the courts entities an injured party to a remedy at law. The right to a balanced presentation also differs from the controversial "fairness doctrine"-an FCC
policy, currently abandoned, requiring broadcast licensees to provide fair
treatment on issues of public concern. 13 The fairness doctrine was only
an agency policy and, like the public interest standard, rarely was adjudi-
cated outside the context of license renewal hearings. 1 4 And finally, the
courts' recognition of the public's right to a balanced presentation also
11. 47 U.S.C. §§ 307(a), 309(a) (1982).
12. The FCC now views the public interest "through First Amendment lenses" as a result of a
historical intertwining of the public interest standard and first amendment interests. Syracuse Peace
Council v. FCC, 867 F.2d 654, 674 (D.C. Cir. 1989), cert denied, 110 S.Ct. 717 (1990). Chief
Justice Burger also has acknowledged the public interest standard as statutory security for first
amendment doctrine in broadcasting: "The 'public interest' standard necessarily invites reference to
First Amendment principles." Columbia BroadcastingSys., 412 U.S. at 122.
13. The fairness doctrine requires that radio and television broadcast licensees devote a reasonable portion of programming to discussion of controversial issues of public concern and, in doing so,
afford a reasonable opportunity in overall programming for the presentation of contrasting views. In
re Applications of City of N.Y., Municipal Broadcasting Sys., 56 F.C.C.2d 169, 170 (1975); see
Columbia BroadcastingSys., 412 U.S. at 111; Red Lion, 395 U.S. at 369. Since adopting the fairness
doctrine, the FCC's policy has been to allow broadcasters "wide journalistic discretion" and to limit
the agency to a determination of whether the licensee acted "reasonably and in good faith." In re
Patsy Mink, 59 F.C.C.2d 987, 994 (1976); see also Fairness Doctrine and Public Interest Standards,
39 Fed. Reg. 26,372, 26,374 S 15 (1974); Fairness Doctrine Primer, 40 F.C.C. 598, 599 (1964);
Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1249 (1949).
The fairness doctrine was promulgated first as an FCC policy, and its scope was delineated in a
series of FCC rulings. Although it serves some of the same purposes, the fairness doctrine is distinct
from the statutory requirement of the Communications Act (§ 315) requiring broadcasters to provide equal time to all qualified candidates for public office. Red Lion, 395 U.S. at 369-70. The
Supreme Court has examined only a few FCC fairness doctrine rulings and, in all cases, has upheld
them on constitutional grounds. See, e.g., id. at 375 (fairness doctrine requires free reply time for
personal attacks and reasonable response time for political editorializing); Columbia Broadcasting
Syi, 412 U.S. at 123 (upholding FCC determination that fairness doctrine does not require right of
access for editorial advertisements).
In 1987 the FCC announced that the fairness doctrine would not be enforced as an agency
regulation. Whereas the doctrine originally had been introduced as a measure protecting first
amendment rights, the FCC, under the leadership of Reagan appointees Mark Fowler and Dennis
Patrick, concluded that first amendment interests are best served by deregulation. Compare Fairness
Doctrine and Public Interest Standards, 39 Fed. Reg. 26,372, 26,373 (1974) ("[t]he purpose and
foundation of the fairness doctrine is ... that of the First Amendment itself") with Inquiry into
Alternatives to the General Fairness Obligations of Broadcast Licensees, 102 F.C.C.2d 143, 148
(1985) (Commission "firmly convinced that the fairness doctrine, as a matter of policy, disserves the
public interest ....").
14. See Columbia BroadcastingSys., 412 U.S. at 110.
[Vol. 1989:1386
differs from the "strict objectivity" standard-a standard that is applicable only in public broadcasting. 1 5 This standard is a statutory "goal," a
"guide to Congressional oversight policy," for legislative supervision of
public broadcasting; it is not a right legally enforceable by courts or the
Recognition of the public's right to a balanced presentation, enforceable in court, is particularly important with respect to public broadcasting because of the government's role in that area- as broadcaster.' 7 The
majority of public stations are licensed to state and municipal agencies"8
who consequently control the the stations and hold the possibility of
propagating their own views, disguised as viewpoint-neutral newscasts,
and promoting programs that present state and local government in a
favorable light. This power potentially enables the government to overpower non-governmental voices through the credibility and authority
that government speech implies, thereby diminishing diversity and further restraining the marketplace of ideas. 1 9 Market forces alone, more-
over, cannot correct such abuses in public broadcasting, as they might in
commercial broadcasting, since commercial stations really do not compete with public stations because of notable differences in programming,
and the fact that few localities receive more than one or two public
15. See 47 U.S.C. § 396(g)(1)(A) (1982).
16. Accuracy in Media, Inc. v. FCC, 521 F.2d 288, 297 (D.C. Cir.), cert. denied, 425 U.S. 934
17. This Note considers the terms "public broadcaster," "noncommercial broadcaster," and
"educational broadcaster," interchangeable in refering to a television or radio station that the FCC
licenses to a (1) nonprofit foundation, corporation, or association, (2) state or political or special
subdivision of a state, or (3) municipality for the purpose of disseminating educational and cultural
programs to the public. See 47 U.S.C. § 397(6),(7) (1982).
18. See infra notes 103-12 and accompanying text.
19. For a general discussion of the overpowering effect of government speech, see M. YUDOF,
(1983); cf Note, The Voice of Government as an Abridgement of First Amendment Rights of Speakers: Rethinking Meese v. Keene, 1989 DUKE L.J. 654 (discussing propaganda labeling by the federal
government as government speech). Although all broadcast licensees, like the traditional press, are
charged with a "historic, dual responsibility" of reporting information and bringing critical judgment to bear on public affairs, government licensees operate with an inherent conflict of interest. See
FCC v. League of Women Voters, 468 U.S. 364, 382 (1984). Public broadcasters, particularly when
they effectively delegate editorial discretion to professional journalists, may perform both these responsibilities admirably. The government licensee's abuse of either responsibility, however, must be
challengeable in court by parties injured by such abuses-members of the viewing or listening public.
BRIEF 2 (Spring 1989) [hereinafter STATISTICS]. According to the CPB statistics, seventy-two percent of the American population receives two or fewer public television stations and seventy-eight
percent receives two or fewer public radio stations. Id. The primary difference in format between
commercial and noncommercial stations is the absence of advertisements on public stations. See 47
U.S.C. § 399(b)(2).
Vol. 1989:1386]
Claims brought in federal court against public broadcasters based on
the public's collective first amendment right to a balanced presentation
provide a means of checking potential government abuses. These claims
would rely on the injured party's initiative and require a licensee to de21
fend his infringing action in terms of a substantial government interest.
Most likely, viewers would be restrained to litigate these actions only
against government licensees of public stations because the first amendment protects the public from the government's abridging conduct, and
the Supreme Court has not found sufficient government involvement in
commercial broadcasting to make non-governmental licensees vulnerable
to first amendment challenges.
This Note analyzes the possibility of a cause of action against public
broadcasters based on the public's collective right to a balanced presentation. Since the strength of the public's right results from the restrictive
presence of government regulation, this Note first examines the statutory
scheme governing public broadcasters, focusing on FCC licensing and
regulation and Congress's funding mechanisms for public broadcastingthe Corporation for Public Broadcasting (CPB).2 3 In Part II, the Note
discusses the Constitution's state action requirement for all first amendment claims, including claims against public broadcasters. This Part argues that government licensees (and therefore most public station
licensees) 24 are subject to such claims according to the state action doctrine. Part II then proposes a standard by which courts should evaluate
claims based on the public's collective first amendment right. Under the
proposed standard, the government's infringing conduct can withstand
attack only if its conduct is narrowly tailored to further a substantial
government interest.2 5 Finally, Part III demonstrates the standard's ap26
plication in the context of three hypothetical cases.
In a special concurrence in Muir v. Alabama Educ. Television Comm., 688 F.2d 1033, 1050 (5th Cir.
1982) (en banc), cert. denied, 460 U.S. 1023 (1983), Judge Rubin pointed out potential differences
among public stations depending on their functions; he described the defendant public stations as
"serv[ing] ... a diet that differs from commercial television primarily in appeal to a somewhat more
sophisticated audience, the absence of commercials, and efforts to raise funds from viewers." Id.
This description fits a large number of public television and radio stations.
21. See infra notes 125-42 and accompanying text.
22. See infra notes 76-89 and accompanying text. For a general discussion of the state action
doctrine as it pertains to commercial broadcasting, see Walden, The Applicability of State Action
Doctrine to PrivateBroadcasters, COMM/ENT L.J. 265 (1985).
23. See infra notes 27-75 and accompanying text.
24. See infra notes 76-114 and accompanying text.
25. See infra notes 125-142 and accompanying text.
26. See infra notes 143-165 and accompanying text.
[V'ol. 1989:1386
The FCC and the BroadcastLicensing System
In the Federal Communications Act of 1934 (Communications
Act), Congress established federal control of all broadcasting 27 by creating the FCC and giving it authority to enforce and execute the statutory
provisions. 28 Congress also ensured public compliance with federal licensing and regulatory requirements by authorizing stiff penalties for vio29
lations of the Communications Act or FCC regulations.
The 1934 Communications Act gives the FCC responsibility
for allocating licenses and construction permits to broadcasters. 30 Since it forbids any radio or television transmission without an FCC license, 31 every
radio and television station must apply for a license and follow the
agency's license renewal procedures. The license application requires information about a proposed station such as its purpose, broadcast schedule, frequency and power, as well as information about the applicant
herself, including her citizenship, character, and technical proficiency.
And if a broadcaster refuses to operate a station in accordance with the
purpose specified in the license or with agency policies regulating the
station's broadcasts, then the FCC has statutory authority to revoke its
Through the Communications Act's public interest standard, Congress set an important guideline for the FCC in exercising its discretion
to grant and renew licenses. This standard allows the agency to grant
licenses and regulate broadcasting "as public interest, convenience, or
necessity requires." '34 Although most applicants satisfy this minimal
standard, the Communications Act, as amended, provides other, more
specific guidelines for close cases. For example, if more than one applicant requests the same channel, then the FCC must determine which
applicant will best serve the public interest. 35 Additionally, if the appli27. Act of June 19, 1934, ch. 652, 48 Stat. 1064 (codified as amended at 47 U.S.C. §§ 151-610
(1982 & Supp. V 1987) (Communications Act of 1934)).
28. 47 U.S.C. §§ 151, 154(i) (1982). The FCC can exercise its authority through administrative
rulemaking, id. § 151, as well as adjudication, id. § 208; see also id. § 401 (granting federal district
courts jurisdiction to enforce compliance with statutory provisions or FCC orders).
29. Any person who willfully and knowingly violates the provisions of the Act may be subject
to a fine of up to $10,000 and/or imprisonment of up to one year. Id. § 501. Violation of any FCC
regulation carries a maximum penalty of $500 for every day the offense occurs. Id. § 502.
30. Id. §§ 307, 319.
31. Id. § 301.
32. Id. § 308(b).
33. Id. § 312(a)(3),(4) (1982 & Supp. V 1987).
34. Id. §§ 307(a), 309(a) (1982).
35. For a discussion of the FCC's "comparative renewal" process, see Note, Simon Gellerand
the ComparativeRenewal Process: What's Goodfor Gloucester?, 6 COMM/ENT L.J. 185, 191 (1983).
Vol. 1989:1386]
cants are equally qualified, the agency must select randomly among them
in order to award the license. 36 To guard against uniformity of broad-
casting, Congress requires that the FCC give "preference" to those applicants who would bring diversity to the airwaves. 37 Congress has
amended the Communications Act to further emphasize diversity of
ownership and to instruct the agency to give "additional significant preferences" to applications of specific "minority group[s]. ' ' 38
A provision in the Communications Act also clarifies that the FCC
has no power to censor programs or curtail free speech rights associated
with broadcasting. 39 The Supreme Court, however, in reviewing the constitutionality of FCC action routinely has sanctioned the agency's exercise of broad discretionary powers in supervising station operation and
regulating program content. The Court has upheld limitations on station
networking, 4° FCC regulation of cable television,4 1 and FCC prohibi-
tions on cross-media ownership.42 In cases more directly involving content regulation, the Court has approved the agency's application of the
fairness doctrine and the right-of-reply requirement to political candidates,4 3 its refusal to mandate an access right for editorial advertise-
ments, 44 and its prohibition of "indecency" on airwaves during daytime
Congress originally developed a regulatory scheme in order to promote broadcasting and administer the limited spectrum as a scarce public
resource by ensuring the allocation of licenses in a fair and efficient man-
ner. Under this administrative scheme, Congress delegated substantial
36. 47 U.S.C. § 309(i) (1982).
37. Id. § 309(i)(3)(A).
38. Id. The Communications Act defines "minority group" to include Blacks, Hispanics,
American Indians, Alaska Natives Asians, and Pacific Islanders. Id. § 309 (3)(C)(ii).
39. Section 326 provides: "Nothing in this chapter shall be understood or construed to give the
Commission the power of censorship... and no regulation or condition shall be promulgated or
fixed by the Commission which shall interfere with the right of free speech ...." Id. § 326 (1982).
40. National Broadcasting Co. v. United States, 319 U.S. 190, 226-27 (1943).
41. United States v. Southwestern Cable Co., 392 U.S. 157, 178 (1968); see also United States v.
Midwest Video Corp., 406 U.S. 649, 663, 666 (1972) (FCC may require cable systems to carry local
broadcasts to encourage programming initiative and satisfy community needs). But see Midwest
Video Corp. v. FCC, 571 F.2d 1025, 1038 (8th Cir. 1978), aff'd, 440 U.S. 689, 709 & n.19 (1979)
(FCC rule requiring that cable systems set aside channel for public access exceeds FCC authority;
Court thus declined to rule on first amendment issue).
42. FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 779, 802 (1978); see also
Note, Eliminatingthe Network/Cable Cross-OwnershipBan: Does a Free MarketProtect the Marketplace of Ideas?, 6 COMM/ENT L.J. 163, 164 (1983) (in light of FCC interest in eliminating ban, a
separate market analysis is required to determine whether network/cable cross-ownership ban increases or decreases diversity of views).
43. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 370, 400 (1969).
44. See Columbia Broadcasting Sys. v. Democratic Nat'l Comm., 412 U.S. 94, 129, 132 (1973).
45. FCC v. Pacifica Found., 438 U.S. 726, 738, 750-51 (1978).
[Vol. 1989:1386
discretion to the FCC. As a result, the agency regularly exercises its
authority to decide which stations meet the "public interest" in license
applications, evaluate whether stations have operated according to their
purpose in licensee-renewal hearings, and more infrequently determine
which stations have violated statutory provisions or agency policies.
However, technological changes over the past twenty years, such as more
efficient use of the available spectrum, better transmission facilities, and
the growth in cable broadcasts, satellite dishes, and superstations, have
reduced the necessity for such pervasive government regulation. 46 In
fact, in several recent broadcasting cases the Supreme Court noted that
innovations during the past fifty years, such as cable, have eased the
channel shortage that originally justified the licensing system.47 Despite
these technological breakthroughs, the Court has decided to retain a doctrinal distinction between the broadcasting and print media in terms of
licensing and regulation until the FCC or Congress explicitly directs it to
do otherwise. 4 8 Thus, despite criticism of the current regulatory system, 49 technological progress has brought no sweeping changes.
This lack of change in broadcast regulation has frustrated both public and commercial broadcasters, who are equally concerned about the
federal regulatory scheme's effect on the right of free expression. Public
broadcasters must be concerned, for Congress has made no distinction in
the regulatory scheme between types of broadcasters.5 0 Thus, the original 1934 Communications Act provisions, along with subsequent legislation directed at public broadcasters, cover public stations.
The Corporationfor Public Broddcasting
Although Congress has promoted the development of educational
broadcasting since 1939,51 the Public Broadcasting Act of 1967 (PBA)
46. See supra notes 1, 5.
47. See, eg., FCC v. League of Women Voters, 468 U.S. 364, 376 n.ll (1984) (advent of cable
and satellite television technologies provides "such a wide variety of stations that scarcity doctrine is
obsolete"); Columbia BroadcastingSys., 412 U.S. at 131 (advent of cable television has increased
opportunities for discussion of public issues).
48. League of Women Voters, 468 U.S. at 376 n. 11.
49. See supra notes 8-10 and accompanying text.
50. The Public Broadcasting Act of 1967 amended the Communications Act of 1934. Pub. L.
No. 90-129, 81 Stat. 365 (codified as amended at 47 U.S.C. §§ 390-399 (1982 & Supp. V 1987)); see
also League of Women Voters, 468 U.S. at 367 (Congress originally made no special provisions for
public broadcasting).
51. See id at 367. Educational stations have operated since the advent of broadcasting in the
United States. Id. In response to the competition generated by commercial stations, the FCC reserved a certain number of stations for educational radio in 1939. 47 C.F.R. §§ 4.131-.133 (1939).
In 1952, the FCC also allocated certain television channels for educational stations. Television Assignments, 41 F.C.C. 148, 157-58 (1952). In 1962 Congress finally provided direct funding for the
Vol. 1989:1386]
was the first major federal funding commitment to public broadcasting. 52
Congress enacted the PBA following recommendations made by the Carnegie Commission on Educational Television.5 3 Congress authorized
federal funding of public broadcasting because, as the Carnegie report
noted, the development of public broadcasting for instructional, educational, and cultural purposes served the public interest. 54 Public broadcasting, as Congress envisioned it, was to be a joint venture between the
federal government and local stations. As the statute emphasized, the
success of public broadcasting would require "freedom, imagination,
initiative" on local levels
This legislation created the Corporation for Public Broadcasting
(CPB) and established guidelines to protect public broadcasters from
overreaching by the federal government. 56 The CPB's primary responsi57
bility is to distribute funds, budgeted by Congress on an annual basis,
for construction of broadcasting facilities and development of "highquality" programming.5 8 The CPB is held accountable for its distributions and must present a detailed financial statement of its annual spending to the General Accounting Office for review.59 Despite this fiscal
construction of noncommercial television stations through the Educational Television Act of 1962,
Pub. L. No. 87-447, 76 Stat. 64.
52. Compare Educational Television Act of 1962, Pub. L. No. 87-447, 76 Stat. 64, 65 (codified
as amended at 47 U.S.C. §§ 390-398 (1982 & Supp. V 1987)) (authorizing matching grants of $32
million over five year period) with Public Broadcasting Act of 1967, Pub. L. No. 90-129, 81 Stat.
365, 365 (codified as amended at 47 U.S.C. §§ 390-398 (1982 & Supp. V 1987)) (authorizing $38
million annually for construction and research grants).
53. See League of Women Voters, 468 U.S. at 368; CARNEGIE COMMISSION ON EDUCATIONAL
The Commission was sponsored by the Carnegie Corporation of New York and endorsed by President Lyndon B. Johnson. Id. at vii. Its purpose was to "conduct a broadly conceived study of
noncommercial television" and to "recommend lines along which noncommercial television stations
might.., develop during the years ahead." Id. The Carnegie Commission published its reappraisal
of public broadcasting (this time, public television and radio) in the 1970s in A PUBLIC TRUST: THE
(1979) [hereinafter CARNEGIE IIJ.
54. CARNEGIE I, supra note 53, at 13-14; see also 47 U.S.C. § 396(a)(1) (1982) ("it is in the
public interest to encourage the growth and development of public radio and television broadcasting,
including.., use.., for instructional, educational, and cultural purposes").
55. Id. § 396(a)(3).
56. See id. § 396(a)(7),(b).
57. 47 U.S.C.A. § 396(k)(2)(B) (West Supp. 1989).
58. 47 U.S.C. § 396(g)(l)(A) (1982).
59. Id. § 396(l) (1982 & Supp. V 1987). The Carnegie Corporation initially proposed that Congress establish a trust to fund the CPB through a manufacturers' excise tax of two to five percent on
television sets. CARNEGIE I, supra note 53, at 8, 68-69. The trust fund was advocated as an alternative to ordinary federal budget appropriations that would enable the CPB to operate free of government administrative regulations and avoid government oversight of day-to-day operations. Id. at 69.
The Commission expected $4 million annually from private sources and foundations compared to
the $60 million per year the excise tax was expected to raise. Id. at 70, 72. Despite the Commis-
[Vol. 1989:1386
supervision, the CPB was not designed to operate as a traditional government agency. 60 Rather, the CPB was organized by Congress as a non-
profit corporation under District of Columbia law, 6' forbidden from
operating broadcast stations,62 and prohibited from producing, scheduling, or disseminating programs to the public. 63 Thus, the CPB, under
congressional design, operates as an independent intermediary between
the federal government and public stations. 64
1. The Public Broadcasting Service. In the PBA, Congress required the CPB to establish interconnection systems that would make
available to affiliated stations all federally funded broadcast services and
programs. 65 The CPB satisfied that statutory requirement by establishing the Public Broadcasting Service (PBS) and National Public Radio
(NPR) as separate interconnection systems for public television and radio stations. 66 These interconnection systems operate as nonprofit corporations whose membership is composed of public stations that receive
direct grants and subscribe to CPB funded services. The member stations of PBS and NPR have access to any programs underwritten by
CPB or produced by these interconnection systems.
Although the interconnection systems are structurally independent
of the CPB, the responsibilities of the CPB and the interconnection systems often overlap. For example, the CPB and PBS both underwrite
sion's recommendation, Congress decided to fund the CPB through an annual appropriation to the
"Public Broadcasting Fund" administered by the Secretary of the Treasury. 47 U.S.C.
§ 396(k)(1)(A), (B) (1982). The amount appropriated is proportional to the non-federal support
received by public broadcasters. Id. § 396(k)(1)(C) (1982 & Supp. V 1987).
60. Id. § 396(b) (1982).
61. Id. § 396(g)(3).
62. 47 U.S.C. § 396(g)(3)(A) (1982).
63. Id. § 396(g)(3)(B).
64. See FCC v. League of Women Voters, 468 U.S. 364, 388-89 (1984) (CPB's "elaborate structure" insulates local public stations from govenment interference); cf Canby, The FirstAmendment
and the State as Editor: Implicationsfor Public Broadcasting,52 TEx. L. REv. 1123, 1158-59 (1974)
(arguing that although Public Broadcasting Service program production may constitute government
censorship, CPB's funding decisions do not raise first amendment problems of content control).
65. 47 U.S.C. § 396(g)(1)(B) (1982).
66. CARNEGIE II, supra note 53, at 39. Despite the importance of NPR and PBS to the successful operation of public stations, the most serious constitutional challenge to the federal public
broadcasting scheme centers on the activities of these interconnection systems. Since the majority of
PBS members are state and local government entities, the government is involved in decisions regarding programming content whenever the interconnection systems sponsor programs. See Canby,
supra note 64, at 1159 & n.218. This involvement in program selection, an exercise of editorial
discretion, arguably impinges on the independent operation of public stations. The systems' influence on programming content, however, is moderated by practical aspects of public broadcasting.
Notwithstanding member stations' contributions, individual stations retain discretion to choose
which programs are broadcast. Membership in PBS and NPR makes sponsored programs available,
but stations are not compelled to broadcast any of these programs or services.
Vol. 1989:1386]
programs for public broadcasters. The CPB retains authority to decide
which programs it finances, although it has agreed to consult with PBS
on these decisions. 67 As an alternative to programs underwritten by the
CPB, PBS sometimes pools its member stations' funds and without ap68
proval of the CPB also produces programs for national distribution.
Additionally, the funds of the two organizations ultimately are commingled. For instance, CPB and its member stations partially fund PBS:
CPB funds PBS's technical operations, 69 although PBS member stations
contribute funds to finance PBS's programming, promotion, research,
and public information. 70 And besides the CPB's direct funding of PBS,
individual public stations may use their unrestricted CPB grants to pay
for programs underwritten by PBS. Despite the overlap of programming
activity and funding, the PBS historically has been aligned more closely
with the individual public stations than has CPB. PBS acts as an advo-
cate of local stations' interests in federal lobbying efforts. 7 1 PBS also impelled CPB to increase the amount of unrestricted grants, in effect
limiting CPB's discretion in program funding.
2. NationalPublic Radio. NPR, the interconnection system for
public radio, operates differently than does PBS. Unlike PBS, NPR par-
ticipates in the joint production (as well as distribution) of programs directly funded by CPB.7 3 All NPR program production is funded entirely
by the CPB with no contributions from individual radio stations. As a
result, competition between NPR and CPB does not exist to the same
67. CARNEGIE II, supra note 53, at 47.
68. Id. Until 1973, national public television programs were funded largely by federal funds
and supplemented by private sources. Id. at 1, 54-55. When the CPB and PBS were reorganized
under the 1973 Partnership Agreement, a larger proportion of the funds were channeled directly to
local stations. See id. at 155. PBS created the Station Program Cooperative (SPC) to pool programming funds for the use of the stations. Id. The SPC benefits from a national programming budget
provided member stations but operates through a decentralized decision making process with several
hundred station representatives. Id. The SPC accounts for forty percent of broadcasting hours. Id.
at 155-56 & n.5. Programs are produced by individual local stations and offered to the system in
order to receive underwriting support. Id. at 156. Stations purchase the programs they use, and the
cost is inversely proportional to the number of stations using the program. Id. at 155 n.5.
69. Id. at 46-47.
70. Id.
71. See, eg., Canby, supra note 64, at 1157-58 (discussing representation of local station's interests by PBS during Congress's attempts to persuade the CPB to drop some of its most controversial
public affairs programs in 1973).
72. Id. at 47. The CPB's discretionary funds are distributed directly to television stations as
Community Service Grants. In 1987, nearly sixty-three percent of CPB's budget went directly to
stations in the form of Community Service Grants ($109.5 million to public television and $34.1
million to public radio stations). See CORPORATION FOR PUBLIC BROADCASTING, CATALYST IN
73. See CARNEGIE II, supra note 53, at 61.
[Vol. 1989:1386
extent as the competition between CPB and PBS arising from their overlapping responsibilities, and individual public radio stations tend to support CPB's supervision of national program productionJ 4 CPB and
NPR's cooperative interaction has resulted in high quality national public affairs programming that is funded directly by the CPB but produced
largely without CPB interference.
C. FederalRegulation of Government Broadcastersand the Public's
FirstAmendment Rights
As set forth above, public broadcast stations are subject to FCC regulation and additional statutory requirements conditioning their receipt
of CPB funds. Meanwhile, the interconnection services, PBS and NPR,
protect public stations' interests (to varying degrees) and provide some
programming produced almost entirely independent of federal government control. As a result of these intermediaries and specific legislation
designed to insulate local public stations, the federal government is involved on the national level in only a limited manner.
Despite the limits on federal control, however, state and municipal
governments are substantially involved in supervising most public stations. The reason is because given the FCC's practice of licensing public
stations to state and municipal government entities, these government
bodies hold ultimate discretion over editorial decisions about programming. This discretionary power in the hands of the government gives rise
to potential abuse-abuse covered as fully by the first amendment as the
more traditional restrictive effect that government regulation can have on
free speech rights. Heretofore, this first amendment protection against
abuse of government discretion has lain dormant. One way to check government prerogative in public broadcasting is for the courts to recognize
claims against government licensees based on the public's right to a balanced presentation.
A claim based on the right to a balanced presentation raises several
difficult first amendment issues. The second Part of this Note addresses
three primary issues raised by such a claim. First, how does a plaintiff
demonstrate sufficient government involvement in public broadcasting to
satisfy the first amendment's state action requirement? Second, under
what standard should courts balance government interests with the public's right to a balanced presentation? Third, which interests, among
many legitimate government interests, are substantial enough to justify
licensee conduct infringing the public's right to a balanced presentation?
74. See id.
75. See id
Vol. 1989:1386]
After addressing these three issues and deriving a standard for testing
such claims, Part III of this Note illustrates the standard's application to
three hypothetical cases.
State Action in Public Broadcasting
The first amendment protects individuals' free speech rights from
government infringement. Although the first amendment's language expressly refers only to Congress--"Congress shall make no law . . .
abridging the freedom of speech, or of the press" 7 6-the amendment has
been interpreted also to protect those rights from infringement by federal
agencies, and state and municipal governments. 77 Thus, in order to invoke the first amendment's protection, a plaintiff must first demonstrate
sufficient federal, state, or municipal government involvement ("state ac78
tion") in the infringing conduct.
Before proceeding to a claim's merits, courts must assess the sufficiency of government involvement by examining the facts and circum79
stances linking the government to an alleged first amendment violation.
Whereas the Supreme Court's analysis considering the presence of state
action in commercial broadcasting is problematic, 80 the case for government involvement in public broadcasting is more compelling. Federal,
state, or municipal governments may be involved in public stations' oper76. U.S. CONST. amend I.
77. See generally J. NOWAK, R. ROTUNDA, & J. YOUNG, CONsTITUTIONAL LAW 421-50
(1986) (official act of any government agency is direct government action and subject to constitutional review). The first amendment's freedom of speech and of the press also have been incorporated into the fourteenth amendment, and this protects against infringement by the states. See
Bridges v. California, 314 U.S. 252, 268 (1941); see also Gitlow v. New York, 268 U.S. 652, 666
(1925) (assuming the first amendment's applicability to the states through the fourteenth
78. See also Public Utils. Comm'n v. Pollack, 343 U.S. 451, 461 (1952) (first amendment restricts government, not private persons); Walden, supra note 22, at 268 (restraints on expression
imposed by private parties are outside scope of the first amendment); cf Marsh v. Alabama, 326 U.S.
501, 506 (1946) (private facilities operated primarily for publicfunction subject to first amendment
79. See also J. NOWAK, R. ROTUNDA, & J. YOUNG, supra note 77, at 448 (Court's case-by-case
analysis results in lack of predictability); cf Burton v. Wilmington Parking Auth., 365 U.S. 715, 722
(1961) ("only by sifting the facts and weighing circumstances can the nonobvious involvement of the
state in private conduct be attributed its true significance").
80. See infra notes 81-89 and accompanying text; see also Walden, supra note 22 (analyzing
application of state action doctrine to private broadcasters in a first amendment context); Lange, The
Role of the Access Doctrinein the Regulation of Mass Media: A CriticalReview andAssessment, 52
N.C.L. REV. 1, 28 (1973) (in constitutional claims against broadcasters, courts demonstrate "a
rather firm presumption against a finding of state action").
[Vol. 1989:1386
ations in three ways: (1) the FCC may impose licensing requirements
and other regulations, or agencies on the state level also may regulate; (2)
the CPB or state and local governments may provide funding; or (3) government licensees may make editorial and operational decisions for the
station. Although government licensing, regulation, and funding of cer-
tain activities do not usually satisfy the state action requirement, the conduct of a public station, acting under authority of a state or local
government licensee, will likely constitute state action for first amendment purposes.
Although the federal government is involved in all public stations by
virtue of FCC licensing and regulation, that involvement is insufficient to
satisfy the first amendment's state action requirement for claims against
non-government broadcasters. In a commercial broadcasting case, Columbia Broadcasting System v. Democratic National Committee, a divided Supreme Court addressed the state action issue.8 1 In this case, the
Democratic National Committee and the Business Executives' Move for
Vietnam Peace challenged a commercial broadcaster's policy prohibiting
editorial advertisements.8 2 The Court held that although the fairness
doctrine and the public interest standard incorporate first amendment
values, neither requires broadcasters to accept editorial advertisements.
In a total of six filed opinions, however, the Court reached no con-
sensus on the state action issue. A plurality of three Justices held that no
state action existed (Chief Justice Burger and Justices Rehnquist and
Stewart);8 4 two held that state action did exist (Justices Brennan and
Marshall); 8 5 one assumed state action for the sake of argument (Justice
White);8 6 two did not address the issue (Justices Blackmun and Pow81. 412 U.S. 94 (1973).
82. Id. at 97-98.
83. Id. at 112-13, 130.
84. Id. at 97, 121 (Burger, C.J., & Rehnquist, Stewart,.J.J., concurring) ("the concept of private, independent broadcast journalism, regulated by Government to assyre protection of the public
interest... could not coexist with a reading of the challenged conduct of the licensee as governmental action").
85. Id. at 70-71 (Brennan, Marshall, J.J., dissenting).
[G]iven the confluence of these various indicia of "government action"-including the public nature of the airwaves, the governmentally created preferred status of broadcasters, the
extensive Government regulations of broadcast programming, and the specific government
approval of the challenged policy-I can only conclude that the Government "has so far
insinuated itself into a position" of participation in this policy that the absolute refusal of
broadcast licensees to sell airtime to groups or individuals wishing to speak out on controversial issues of public importance must be subjected to the restraints of the First Amendment.
Id. at 180-81 (footnotes omitted).
86. Id. at 146 (White, J., concurring) (although conduct of broadcasters should not always or
even often be considered government action, it is "at least arguable, and strongly so," that the Communications Act and FCC policies, including fairness doctrine, are "sufficiently implicated" here to
require first amendment review).
Vol. 1989:1386]
el); 8 7 and one concurred in the plurality opinion but stated his own view
that licensing of private conduct makes it state action (Justice Douglas). 88 One conclusion that can be drawn from this lack of consensus is
that FCC licensing and regulation alone does not satisfy the first8 9amendment's state action requirement in the context of broadcasting.
But state governments also oversee public broadcasting in a number
of ways. Although the approaches states follow vary, most have enacted
their own legislation modeled on the PBA and have placed public broadcasting under direct state government supervision. 90 The supervisory authorities differ from state to state and include boards of education, 9 1 state
universities, 92 boards of regents, 93 departments of general services, superintendents of public instruction, 9 5 and some specially created "takeover" commissions.9 6 And a few states have created state coordinating
87. Id. at 148 (Blackmun, Powell, J.J., concurring) (since Court concluded that the first amendment does not compel a right of access for editorial broadcasts, government action issue does not
affect outcome of the case).
88. Id. at 150 (Douglas, J., concurring) ("activities of licensees of the government operating in
the public domain are government actions"). Justice Douglas has argued repeatedly that government licensing of an activity constitutes sufficient government involvement to qualify that activity as
state action subject to constitutional standards. See, eg., Lombard v. Louisiana, 373 U.S. 267, 283
(1963) (Douglas, J., concurring) ("State's interest in and activity with regard to its restaurants extends far beyond any mere income-producing licensing requirement"); Garner v. Louisiana, 368 U.S.
157, 183-85 (1961) (Douglas, J., concurring) (licensing and regulation of restaurant made it a "public facility" whose operations should qualify as state action) (majority decided case on narrower
89. See Jaffe, The EditorialResponsibility of the Broadcaster Reflections on Fairnessand Access, 85 HARV. L. REV. 768, 784 (1972); see also Walden, supra note 22, at 297-98 (discussing
Supreme Court's fractured opinions regarding state action in the CBS case).
Licensing schemes in other contexts also have failed to satisfy the state action requirement. See,
e.g., Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 164 (1972) (6-3 decision rejecting claim that
private club's discrimination was state action because the club had state license to serve liquor). But
see L. TRIBE, AMERICAN CONSTITUTIONAL LAW 1719-20 (1988) (in Moose Lodge and Columbia
BroadcastingSystem, government licencing constituted government action that would be subject to
constitutional testing).
91. See DEL. CODE ANN. tit. 14, §§ 129-130 (1981); FLA. STAT. §§ 229.805, 230.59, 235.40
(1988 Supp.); OR. REV. STAT. § 354.090 (1987); R.I. GEN. LAWS § 16-61-1 to -8 (1988); TENN.
CODE ANN. § 49-50-901 to -909 (1983 & Supp. 1988).
92. See ME. REV. STAT. ANN. tit. 20-A, §§ 802-803 (1964), §§ 852-853 (1964 & Supp. 1988);
VT. STAT. ANN. tit. 16, § 2801 (1982).
93. N.Y. EDUC. LAW §§ 213, 236, 414-a (McKinney 1988).
94. See CAL. REV. & TAX. CODE §§ 214, 215.5, 225.5 (West 1987 & Supp. 1989).
95. See MONT. CODE ANN. § 20-3-105(2) (1987).
96. R. Sadowski, supra note 90, at 196-97. See ALASKA STAT. § 44.21.256 (1984); ARK. STAT.
ANN. § 6-64 (1947 & Supp. 1983-84); MD. EDUC. CODE ANN. § 24-201 (1988); MASS. GEN. LAWS
ANN. ch. 6, § 158 (West 1989); NEB. REV. STAT. § 72-718.03 (reissue 1986), id. at § 79-2101 (reissue 1987 & Supp.); N.J. STAT. ANN. § 48:23-1 to -10, (West Supp. 1989); OKLA. STAT. ANN. tit. 70,
§§ 23-101, 2166, 2167 (1989); PA. STAT. ANN. tit. 71, § 1188.1 (Purdon Supp. 1989); id. tit. 24,
[Vol. 1989:1386
and advisory commissions that allow public stations greater operating
independence than do supervisory authorities. 97 For state action pur-
poses, however, a distinction must be drawn between regulatory action
by the state agencies themselves (always state action) and the conduct of
individual public stations that are regulated by state agencies (arguably
state action). In a number of cases, the Supreme Court has held that
various private enterprises are not involved in state action even though
they are regulated significantly by government commissions and
Although licensing and regulation alone are probably insufficient to
constitute state action, federal and state governments also subsidize and
fund public broadcasting. In 1987, the federal government provided
18.7% of public broadcasting's funds through CPB and other government grants and contracts. 99 State and local governments provided an
additional 30.0% through government subsidies and funds budgeted
through tax-supported colleges and universities. 2 00 Despite the large
proportion of public funds, 0 1 the receipt of government funds alone does
not make an otherwise private actor a state actor for constitutional purposes.' 0 2 In a series of recent cases, the Supreme Court has held that
government involvement through subsidies is insufficient to meet the
state action requirement.
5-523, 5-525 (Purdon 1962 & Supp. 1989); id. tit. 24, § 2822(3) (Purdon 1962); S.D. CODIFIED
LAWS ANN. § 13-47-1 to -23 (1982 & Supp. 1989); Wis. STAT. ANN. § 36.25(5) (West Supp. 1988).
97. For state public broadcasting under coordinating commissions, see LA. REV. STAT. ANN.
§ 17:2501-03 (West 1982); OHIO REV. CODE ANN. § 3353.01-.02 (1985); UTAH CODE ANN. § 548b-1 to -9 (1986 & Supp. 1989); VA. CODE ANN. § 2.1-563.26 (1987); W. VA. CODE § 10-5-1 to -5
(1984 & Supp. 1989). For those states organized under advisory committees, see N.D. CENT. CODE
§§ 15-11-27, 15-47-36, 15-65-01 (1971 & Supp. 1989); WASH. REV. CODE ANN. § 284.91.100 to .120 (1982).
98. See, ag., Jackson v. Metropolitan Edison Co., 419 U.S. 345, 359-60 (1974) (privatelyowned utilities company not involved in state action despite state regulation); Public Utilities
Comm'n v. Pollack, 343 U.S. 451,465 (1952) (regulatory supervision by Public Utilities Commission
did not satisfy state action requirement).
99. STATIsTIcs, supra note 20, at 15.
100. Id.
101. In 1988, private groups provided just a little under fifty percent of public broadcasting
funds. The contributors included subscribers (21.2%), businesses (15.1%), foundations (3.7%), private colleges and universities (2.8%), other sources (6.5%). Id.
102. See generally J. NOWAK, R. ROTUNDA, & J. YOUNG, supra note 77, at 445 (further government involvement besides receipt of government funds must be shown before Constitution limits
action of private parties).
103. See, eg., Blum v. Yaretsky, 457 U.S. 991, 1001 (1982) (no state action when private nursing
home received reimbursement from state for Medicaid care); Rendell-Baker v. Kohn, 457 U.S. 830,
832 (1982) (actions by private school receiving income primarily from public sources and regulation
by state authorities does not constitute state action); see also L. TRIBE, supra note 89, at 1716-17 (in
Blum and Rendell-Baker despite bulk of funds from government and heavy state regulation, Court
still did not find governments responsible for specific decisions giving rise to compaint).
Vol. 1989:1386]
Although government licensing, regulation, and funding of public
stations do not add up to state action, the editorial and operational decisions made by a public station licensed to a government entity do constitute state action for first amendment purposes.' °4 For example, if the
FCC grants a state university a license to operate a public station, in
assessing a first amendment claim a court would consider the station's
editorial, administrative, policy, and personnel decisions to be state action subject to first amendment review.10 5 Applying the holding of a
number of courts, the same conclusion would apply to the following entities acting in their capacity as public station licensees: boards of education,10 6 boards of regents, 10 7 commissioners of education, 0 8 state
agencies,10 9 municipal officials,' 1 0 and educational institutions."' And
104. The federal statutory scheme for public broadcasting provides a means of classifying public
stations according to the status of the licensees. Beginning with the Educational Television Facilities
Act of 1962, the statutory provisions have allowed for five classes of eligible applicants for grants
under the federal programs: (1) state or local public school agencies; (2) state public broadcasting
agencies and commissions; (3) state-supported colleges and universities; (4) nonprofit community
corporations and associations organized primarily to engage in public broadcasting; and (5) municipalities operating public broadcasting stations. See S. REP. No. 93-123, Authorization for Public
Broadcasting, 93d Cong., 1st Sess. 4 (1973) (remarks of Sen. Pastore). According to this classification, only the nonprofit community organizations and associations for public broadcasting would not
meet the state action requirement.
105. See, eg., Gay and Lesbian Students Ass'n v. Gohn, 850 F.2d 361, 365-66 (8th Cir. 1988)
(state action present in refusal of funding request because university official had final say in decisions
through appeals procedure); Gay Lib v. University of Missouri, 416 F. Supp. 1350, 1371 (W.D. Mo.
1976) (state action in state university's recognition of campus organizations), rey'd on othergrounds,
558 F.2d 848 (1977), cert. denied, 434 U.S. 1080 (1978); Florida State Univ. Chap., Local 1880 v.
Florida Bd. of Regents, 355 F. Supp. 594, 596 (N.D. Fl. 1973) (state university president is agent of
state satisfying state action requirement).
106. See, eg., FloridaBd. of Regents, 355 F. Supp. at 596 (state board of education and commissioner of education agents of state satisfying state action requirement); Alexander v. Thompson, 313
F. Supp. 1389, 1391 (C.D. Ca. 1970) (local school board's conduct constituted state action);
NAACP v. Lansing Bd. of Educ., 429 F. Supp. 583, 617 (W.D. Mich. 1976) (state board of education's conduct satisfied state action), aff'd, 571 F.2d 582, cerL denied, 438 U.S. 907 (1978); Oliver v.
Kalamazoo Bd. of Educ., 368 F. Supp. 143 (W.D. Mich. 1973) (same), aff'd, 508 F.2d 178 (6th Cir.
1974), cert. denied, 421 U.S. 963 (1975); Hart v. Community School Bd., 383 F. Supp. 699, 748
(1974) (municipal board of education is an agent of state for state action purposes), aff'd, 512 F.2d
37 (2d. Cir. 1975).
107. See, eg., FloridaBd. of Regents, 355 F. Supp. at 596 (state board of regents agent of state
satisfying state action requirement).
108. See, e.g., Dunham v. Pulsifer, 312 F. Supp. 411, 416 (D. Vt. 1970) (superintendent of education is state agent for state action purposes).
109. See, e.g., Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 179 (1972) (state action present in
conduct of state administrative and regulatory agencies, although not in in conduct of private club
with state liquor license); Robinson v. Florida, 378 U.S. 153, 156 (1964) (state action in decisions of
state's administrative and regulatory agencies just like legislative decisions); Avery v. Midland
County, 390 U.S. 474, 480 (1968) (state action by state's political subdivisions); Muhammad Ali v.
Division of State Athletic Comm'n of Dep't of State of N.Y., 316 F. Supp. 1246, 1250 (S.D.N.Y.
1970) (act of state's duly constituted agency deemed state action). But see Haris v. Hubbert, 588
F.2d 167, 168 (5th Cir. 1979) (Alabama Education Association not state agency for state action
[Vol. 1989:1386
since over two-thirds of the stations receiving federal funds from the
CPB in 1988 were licensed to state and municipal government licensees, 1 2 courts should conclude that the actions of a large number of publie stations satisfy the state action requirement.
Important policy reasons also support this conclusion. Courts acknowledge that the FCC grants the licensee-whether a government
agent or a private party-discretion to make editorial and operational
decisions. 113 A government licensee with such wide-ranging discretion
and authority, however, must also be responsible for respecting free
speech rights. If courts routinely held that the state action requirement
was not satisfied in public broadcasting, then courts would never reach
the merits, and the nature and limitations of the public's collective first
amendment rights vis-a-vis the government licensee's statutory rights
would not be determined. Additionally, courts should regard public
broadcasters' actions as constituting state action since the public cor-
rectly associates these stations with the government institutions that operate them. Whereas many feople would admit that commercial stations
may operate as they choose within the confines of government regulation,
the public could not help but smell government impropriety when a public station's conduct openly and obviously violates free speech rights. Finally, the courts' failure to hold that a government licensee's conduct
constitutes state action would stand outside of a line of other state action
precedents that regard conduct by state and municipal institutions as
purposes but rather a voluntary, self-supported group of teachers and administrative supervisors
with many -nonpublic employee members).
110. See, eg., Lombard v. Louisiana, 373 U.S. 267, 273-74 (1963) (decisions of municipal executive body constitute state action); Southeastern Promotions, Ltd. v. Charlotte, 333 F. Supp. 345
(W.D.N.C. 1971) (use of municipal auditorium constitutes state action); Bennett v. Gravelle, 323 F.
Supp. 203, 217 (D. Md.) (Washington Sanitation District Commission and commissioner's action
are state action), aff'd, 451 F.2d 1011 (4th Cir. 1971); Ruffin v. Housing Auth., 301 F. Supp. 251,
254 (E.D. La. 1969) (municipalhousing authority is state agent for state action purposes).
111. Guadalupe Org. Inc. v. Tempe Elementary School Dist. No. 3, 587 F.2d 1022, 1026 (9th
Cir. 1978) (public elementary school's curriculum choice constituted state action).
112. See STATIsTIcs, supra note 20, at 10 (213 out of 309 public radio stations licensed to state
colleges and universities (180), municipal school districts and governments (20), and state governments and broadcasting authorities (13); 222 out of 324 public television stations licensed to state
colleges and universities (86), municipal districts and governments (13) and state governments and
broadcasting authorities (123)).
113. See, eg., Columbia Broadcasting Sys. v. Democratic Nat'l Comm., 412 U.S. 94, 124 (1969)
("For better or for worse, editing is what editors are for; and editing is selection and choice of
material."). But see CBS, Inc. v. FCC, 453 U.S. 367, 396-97 (1981) (Court upheld § 312 of Communications Act granting right of access to federal candidates because limited right of access does not
impair editorial discretion of broadcasters).
Vol. 1989:1386]
state action under the first amendment and other constitutional
provisions. 114
B. A Standardfor Testing Claims Based on the Public's Collective
First Amendment Rights
1. A Standard to Test Licensee Conduct. After determining that
a licensee's conduct is state action, courts should proceed to the merits of
a viewer's or listener's claim against a licensee. Evaluating these claims
requires a standard for testing licensee conduct. This standard must
weigh the public's right to a balanced presentation against the interests
the government licensee asserts to justify its infringing conduct. In addition to this balancing function, the standard must reflect the Supreme
Court's special treatment of the federally regulated broadcasting media.
Although the Supreme Court has developed alternative first amendment standards to accommodate the FCC's licensing and regulatory authority, 115 the Court has not yet applied these standards to a claim
brought against a government licensee involved in public broadcasting.
In FCCv. League of Women Voters, 116 the Court's only case involving a
public station, the plaintiffs brought their claim against the FCC rather
than the stations themselves. The League of Women Voters of California, an individual listener and viewer of certain public stations, and the
licensee of those stations-Pacifica Foundation (a private nonprofit corporation unassociated with state or local government)-all brought an
action in federal district court against the FCC challenging the constitutionality of section 399 of the PBA. 117 Section 399 prohibits public stations receiving federal funds through CPB, like those stations operated
by Pacifica, from broadcasting editorials.1 18 The Supreme Court held, in
a five-to-four decision, that the PBA ban against editorializing was
unconstitutional.1 19
114. See supra notes 104-12 and accompanying text. The difficult cases for first amendment
analysis involve privately-owned noncommercial stations, like the one operated by the Pacifica
Foundation in League of Women Voters See FCC v. League of Women Voters, 468 U.S. 364, 370
(1984). These non-government licensees are more similar to commercial station licensees for state
action purposes.
115. See supra note 1.
116. 468 U.S. 364 (1984).
117. Id. at 364, 370. Section 399, as amended by the Public Broadcasting Amendments Act of
1981, forbids any "noncommercial educational broadcasting station which receives a grant from the
Corporation" to "engage in editorializing." 47 U.S.C. § 399 (1982).
118. League of Women Voters, 468 U.S. at 370 & n.7.
119. Id. at 395. This case provides an interesting comparison to the commercial broadcasting
case, Columbia Broadcasting Sys. v. Democratic Nat'l Comm., 412 U.S. 94 (1972). Columbia
BroadcastingSys. involved a private party challenge to a (private) commercial station's policy
against editorial advertisement. In that case the first amendment balance favored the private broad-
[Vol. 1989:1386
Although the claims in League of Women Voters challenged an FCC
regulation and not a government licensee's editorial decision, the Court
nevertheless established a standard of review that should apply more
broadly in other broadcasting cases. Under that standard, the courts
should sustain restrictions that infringe on the public's right to a balanced presentation only if the restriction meets two conditions: The re-
striction (1) is narrowly tailored, and (2) furthers a substantial public
interest. 120 Justice Brennan, writing for the majority in League of Women Voters, considered whether to adopt a more stringent standard requiring a compelling government interest-the standard by which courts
have traditionally reviewed speech 121-but instead adopted an intermediate standard of review because of the technological and historical distinctions that courts have made for broadcast speech.122
Although League of Women Voters did not involve a claim against a
government licensee of a public station, the standard enunciated by the
caster and the Court refused to authorize further government regulation mandating a right of access
for editorial advertisements. See supra notes 81-83 and accompanying text. In League of Women
Voters, however, the private parties and public broadcasters (licensed to a private, nonprofit corporation) joined to challenge the statutory prohibition against editorial advertisements. In this case, the
Supreme Court struck down the government regulation that limited broadcaster discretion and violated the public's first amendment rights. 468 U.S. at 395. The similarities and differences of the
two cases highlight the importance of taking into account the procedural posture of a case when
sorting out competing first amendment claims. Although helpful in the analysis, neither case involves the procedural and substantive complications that this Note addresses-when private parties'
first amendment rights are pitted against the discretion of a government licensee.
120. League of Women Voters, 468 U.S. at 380, 395.
121. Id. at 378-80 ("the absolute freedom to advocate one's own positions without also presenting opposing viewpoints-a freedom enjoyed, for example, by newspaper publishers and soapbox
orators-is denied to broadcasters"); see also Miami Herald Publishing Co. v. Tornillo, 418 U.S.
241, 256 (1974) (government compulsion of a newspaper to publish that which "reason" says they
should not is unconstitutional).
122. League of Women Voters, 468 U.S. at 377-78. Justice Rehnquist's dissent, joined by Chief
Justice Burger and Justice White, rejected such a standard based on the doctrine of constitutional
conditions. Id. at 407 (Rehnquist, J., dissenting). This doctrine provides that when the government
exercises its power to allocate public funds according to the taxing and spending powers, the government may attach conditions to the funds as long as these conditions have a rational relation to
Congress's purpose in providing the funds. Cf Cammarano v. United States, 358 U.S. 498, 513
(1959) (denial of tax deduction for expenditures made to promote or defeat legislation does not
implicate constitutionally protected activity). But see Speiser v. Randall, 357 U.S. 513, 519 (1958)
(state may deny tax exemption to taxpayer engaging in certain type of speech-speech advocating
overthrow of U.S. government-if individual may be fined or imprisoned for that speech); American
Communications Ass'n. v. Douds, 339 U.S. 382, 402-03 (1950) (no statute aimed at the suppression
of dangerous ideas, although aimed at the regulation of conduct, may "be made the instrument of
arbitrary suppression of free expression views"). In League of Women Voters, Justice Rehnquist's
dissent argued that it is rational for Congress to have determined that public taxes should not go to
subsidize a station manager's views or support her partisan politics. 468 U.S. at 408. Justice Rehnquist also stressed that Congress reasonably determined that editorializing should be banned on
public stations to avoid the appearance that government sponsors a particular view or political candidate. Id. at 407.
Vol. 1989:1386]
Court also should apply to those claims. Not only is the standard fair
and reasonable, it is consistent with precedent in broadcasting cases. According to that precedent, the Supreme Court has required that the government identify a substantial interest that justifies the conduct
infringing broadcast speech. 123 As the Court indicated in League of Women Voters, the broadcasting media "operates under restraints not imposed on other media," and these restraints are designed to "secure the
public's First Amendment interest in receiving a balanced presentation."' 124 This intermediate standard also accommodates two important
and, in this context, competing concerns in first amendment doctrine:
licensees' traditional editorial role and the viewers' right to a balanced
presentation. The League of Women Voters standard balances these two
concerns against one another, taking account of both but giving absolute
priority to neither.
2. How to Measure the Substantiality of Government Interests?
Although League of Women Voters provides a standard to test the licensee's conduct, it does not offer a basis to measure the substantiality of the
government's interest. As the Court explained in League of Women Voters, a restriction does not meet the "narrowly tailored" standard if the
substantial interest justifying that restriction could be "fully satisfied by
less restrictive means that are readily available." 12 5 The Court, however,
does not identify which interests, among the many interests the licensee
might assert, would be substantial. The Court identifies one government
interest-ensuring balanced coverage of public issues-that naturally
would be substantial given the importance of "balance" in the development of the regulated industry. 126 While this government interest would
be the main interest the FCC would assert to justify its actions as a regulator, it would not necessarily be the interest a government licensee
would assert to sustain editorial decisions. Thus, other interests must be
identified and evaluated in order to adapt the League of Women Voters
test for use in claims against broadcasters. Muir v. Alabama Educational
Television, 127 an important Fifth Circuit en banc decision that involved
claims against a government public station licensee and was decided
123. See, eg., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 385 (1968) (statutory requirement that stations provide reply time to answer personal attacks and political editorials serves public
interest in "vigorous debate on controversial issues of importance and concern").
124. Id. at 380.
125. Id. at 395, 399.
460 U.S.
TV, 688
Id. at 378.
Muir v. Alabama Educ. Television Comm'n, 688 F.2d 1033 (5th Cir. 1982), cert. denied,
1023 (1983). The companion ease to Muir is Barnstone v. University of Houston, KUHTF.2d 1033 (5th Cir. 1982).
[Vol. 1989:1386
before the Supreme Court's decision in League of Women Voters, further
clarifies how a court would measure the substantiality of a government
licensee's interest.
In Muir the Fifth Circuit sitting en banc heard two cases in which
the district courts had reached opposite results in reviewing claims
against two public stations. In both cases, public station viewers had
sought injunctions compelling the stations to broadcast a cancelled program, "Death of a Princess."' 129 On appeal, the viewers argued that the
courts' recognition of their first amendment rights limited the discretion
the government licensee could exercise in making programming deci-
sions. 130 A plurality of the Fifth Circuit, however, rejected that argument, holding that viewers can not compel public stations to broadcast
cancelled programs since these stations, according to first 'amendment
doctrine, are not public forums.1 31 In the plurality's view, Congress, by
128. Muir, 688 F.2d at 1033.
129. Id. at 1036 ("Program is a dramatization of the investigation into the motivations and
circumstances which (allegedly) led to the July 1977 execution for adultery of a Saudi Arabian
princess and her common lover."); see also infra notes 147-52 and accompanying text.
130. Muir, 688 F.2d at 1036-37.
131. Id. at 1042-43, 1046-47. Judge Hill's plurality opinion relied on a rather mechanical application of public forum analysis to explain the result. The viewers had argued that the stations, as
public forums, are prohibited from making programming decisions motivated by hostility to the
program's message and stemming from a specific viewpoint of the broadcaster. Id. at 1041. Judge
Hill pointed out that a facility is a public forum only ifit is designed to provide a general public right
of access or if there is a historic right of access. Since the government has not designated public
stations as public forums, the opinion concluded, viewers have no right of access. Id. at 1042.
The opinion pointed out that facilities such as municipal auditoriums, Southeastern Promotions
Ltd. v. Conrad, 420 U.S. 546, 552 (1975), bus terminals, Wolin v. Port of New York Auth., 392 F.2d
83, 89 (2d Cir.), cert. denied, 393 U.S. 940 (1968), airports, Chicago Area Military Project v. City of
Chicago, 508 F.2d 921, 926 (7th Cir.), cert. denied, 421 U.S. 992 (1975), high school auditoriums,
National Socialist White People's Party v. Ringers, 473 F.2d 1010, 1014 (4th Cir. 1973), public
libraries, Brown v. Louisiana, 383 U.S. 131, 139 (1966) (plurality opinion), and welfare offices, Albany Welfare Rights Org. v. Wyman, 493 F.2d 1319, 1323-24 (2d Cir.), cert. denied, 419 U.S. 838
(1974), had been recognized as public forums, but not public stations, Southeastern Promotions, Ltd.
v. City of West Palm Beach, 457 F.2d 1016, 1019 (5th Cir. 1972).
The court in Muir relied on the test used in Southeastern Promotions, Ltd. v. City of West Palm
Beach, 457 F.2d 1016, 1019 (5th Cir. 1972). The test was formulated in Wolin v. Port of New York
Auth., 392 F.2d 83, 89 (2d Cir.), cert denied, 393 U.S. 940 (1968).
[D]oes the character of the place, the pattern of usual activity, the nature of its essential
purpose and the population who take advantage of the general invitation extended make it
an appropriate place for communication of views on issues of political and social significance.
Muir, 688 F.2d at 1042.
The plurality's reliance on public forum doctrine drew strong criticism from Judge Rubin in his
concurring opinion. Id. at 1048 (Rubin, J., concurring). Rubin initially pointed out that the term
"public forum" is not a definition, but is a conclusion. Id. A public forum, he explained, is a label
describing a location whose use is open to the public. Id. The public forum doctrine governs the
freedom of expression in streets and other areas that, by tradition, serve as platforms for expression
free from content control and subject only to reasonable restrictions of time, place, and manner.
This doctrine, according to Judge Rubin, cannot dictate limitations the first amendment might im-
Vol. 1989:1386]
enacting the PBA, had determined that the first amendment fights of
public television viewers were adequately protected under a regulatory
system that gave the licensee sole programming discretion but also required the licensee to serve the public interest. 132
In a special concurrence to the plurality opinion in Muir, an opinion
that a Eleventh Circuit panel later described as the holding of the Muir
case, 133 Judge Rubin focused not on the public forum doctrine but rather
on a licensee's (statutory) duty to serve the public's interest in program
selection. 34 In his concurrence, Judge Rubin emphasized that the balancing of fights and interests must take into account the station's "function" or "mission," as specified in its license and its normal operation:
Licensing is not destiny. That the state is the licensee does not predetermine the station's function. The state may elect the station's mission, so long as this mission is consistent with the station's license and
the Constitution. The prerogatives of managers, editors, and programmers, the rights of access of those who seek exposure, and the rights of
viewers, as well as the prerogatives of the licensee itself as a state
agency, are at least in large part determined by this mission.1 35
In Judge Rubin's view, courts should determine and evaluate a government licensee's "substantial interests" with reference to the station's
mission or function.136 That function, as described by the station's license and its normal operational practice,1 37 sets a normative standard
for evaluating the station's future conduct. By looking to that underlying
function, a court can determine whether an interest asserted by a government licensee is substantial enough to justify conduct infringing the public's collective first amendment rights. If the asserted interest serves the
pose on the government's operation of a medium of communication. Id. Judge Rubin essentially
refrained the issue of the case as this Note has done: The issue is "how... the first amendment
control[s] state action when the state is operating a television station?" Id. at 1049.
132. Id. at 1041.
133. Schneider v. Indian River Community College Foundation, 875 F.2d 1537, 1541 (1 1th Cir.
1989). The court explained in Schneider that Judge Rubin's special concurrence, as the "narrowest
concurrence, is the holding of the case," absent a majority opinion. Id. at 1541 (in en bane decision
involving twenty-two judges, Judge Hill's opinion was joined by nine judges and concurred with by
another in a separate opinion; Judge Rubin's special concurrence was joined by three judges); see
also, eg., Marks v. United States, 430 U.S. 188, 193 (1977) ("When a fragmented Court decides a
case and no single rationale explaining the result enjoys the assent of five Justices, the holding ;of the
Court may be viewed as that position taken by those Members who concurred in the judgments on
the narrowest grounds ....
(quoting Greg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (Stewart,
Powell, & Stevens, J.J., plurality)). The Eleventh Circuit panel's characterization of Judge Rubin's
opinion as the narrowest one, rather than Judge Hill's opinion, is convincing, especially since Judge
Hill was the one who characterized it that way in the majority opinion in Schneider. See Schneider,
875 F.2d at 1539.
134. Id. at 1048 (Rubin, J., specially concurring).
135. Id.
136. Id. at 1050-51.
137. Id. at 1049.
[Vol. 1989:1386
station's underlying function, then it will likely be "substantial" for first
amendment purposes. For example, if a state university station is shown
to be a "magazine of the air," providing "general news dissemination" or
"free exposition of ideas," then the government's interest in maintaining
audience interest probably would not be substantial enough to justify cer1 38
tain restrictions of the station's news coverage.
This standard of evaluation places some obvious limits on the range
of government interests that can be asserted under the League of Women
Voters balancing test. Because a government licensee must serve thepublic interest, 139 the licensee could not assert a private or personal interest
as justification for conduct infringing the public's first amendment rights.
For example, an Islamic public station manager could not decide to quit
airing the "McNeil/Lehrer News Hour" because an episode involved an
interview with author Salman Rushdie. 14° Indeed, a court faced with
such a claim would never reach the League of Women Voters analysis:
Because a personal interest is not a governmental interest, the court
could reject that interest as a justification for the state's conduct without
even considering the interest's substantiality.
Thus, in evaluating claims against public broadcasters based on the
public's right to a balanced presentation, courts must determine whether
the government licensee's conduct furthers a substantial government interest and is narrowly tailored to serve that interest. 141 An interest unrelated to the government's role as a broadcast licensee would provide no
justification for infringing conduct. Moreover, as Judge Rubin articulated the standard in Muir, the government's asserted interests must further the mission of the station.1 42
In order to demonstrate the application of this test for claims
against public broadcasters, this Note considers three hypothetical cases.
A. A Hypothetical Case
Suppose a local university radio station broadcasts a series of interviews with hometown physicians discussing health risks that women incur from abortions performed during the first eight weeks of pregnancy.
The station then cancels a program presenting "the other side," a report
Cf id. at 1050.
See supra note 11 and accompanying text.
See supra notes 115-24 and accompanying text.
See supra notes 125-37 and accompanying text.
Vol. 1989:1386]
on new techniques that promise to reduce abortion risk even further below the health risks incurred by women who carry to full term, upon the
urgent request of the university president, the station's nominal licensee.
As a matter of public knowledge, the university president has made large
contributions to a national lobbying group organized to persuade states
to enact legislation further restricting abortion following the Supreme
Court's recent decision allowing such restrictions, Webster v. Reproductive Health Services.143 The university president also has been active in a
local group dedicated to electing conservatives to the state legislature.
The public radio station receives listeners' letters protesting the cancellation and in response to their demands for an explanation from the station, the university president flatly refuses to comment.
As a result, several listeners file a class action suit in federal district
court against the licensee on behalf of the entire public radio audience in
the listening area. Their complaint alleges that by cancelling the program, the licensee (the university president) interfered with the station's
normal operation by professional journalists and thus violated the listeners' right to a balanced presentation on issues of public concern, as guaranteed by the first and fourteenth amendments. The viewers seek an
injunction compelling the station to air the program. In response to the
complaint, the university president argues that FCC policy vests absolute
discretion for program selection in the licensee, and his decision to cancel
the program was an authorized exercise of that discretion.
Under the public broadcasting test proposed in this Note, the listeners in this case would win; a court would enjoin the public station to
reschedule the cancelled program. The listeners' first amendment right
to a balanced presentation establishes a presumption that the public station should not cancel a program responding to the one that highlighted
only the health risks of abortion. In order to overcome this presumption,
the government licensee must identify a substantial government interest
justifying its decision to cancel the second program.
In order to provide such a justification, the licensee's personal opposition to abortion, for example, would not satisfy the standard because it
is not even a government interest. 145 If the licensee were able to identify
another interest, such as an interest in public health and morality, the
court then would consider that interest's substantiality. So vague a government interest, however, probably would not satisfy the substantiality
requirement with the degree of specificity that Judge Rubin's concurring
for the
Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).
If the licensee refused to identify any government interest, the court would rule summarily
listeners as a matter of law.
See supra notes 138-39 and accompanying text.
[Vol. 1989:1386
opinion in the Muir case requires. 146 Although the interest in public
health and morality is a government interest, it is not clear that such an
interest furthers the mission of the station. As the court would find,
based on the station's normal operation and the terms of its license, the
station's mission is in part to keep the public abreast of important medical developments-matters of public concern, especially to a listening audience in a university community. To the extent that the interest in
public health and morality is inconsistent with the station's mission, that
interest would not justify this station's decision to cancel the broadcast.
Finally, the licensee also may encounter difficulty establishing the
substantiality of this interest because the president is merely a nominal
licensee, rarely involved in the station's day-to-day programming decisions or normal operation. Because the station's day-to-day operators
would be in the best position to fulfill the station's mission of keeping the
public abreast of important developments, the courts may not consider
any interest that a nominal licensee asserts as substantial enough to justify an unusual interruption of the stations' normal operations without
corroboration by station operators.
More Substantial Government Interests: Muir v. Alabama
Education Commission
This first hypothetical illustrated a relatively clear case in which a
government licensee was unable to identify a government interest justifying its decision to cancel a controversial program.' 47 In many cases,
however, the government licensee may be able to identify a variety of
government interests. In those cases, a court then must evaluate whether
the interests are substantial enough and whether the licensee's restrictive
action was narrowly tailored to serve that interest.14 8 An interest is substantial when it furthers the mission of the station according to its normal operation and the terms of its license,1 4 9 and a narrowly tailored
restriction serves an interest that could not be "fully satisfied by less re146. See supra notes 132-37 and accompanying text.
147. Is the outcome in this case really clear, or rather does the result make sense because of the
general public's acceptance of the possibility of two legitimate, but opposing, viewpoints? Consider,
for example, whether smokers joined by RJR Nabisco to challenge the cancellation of a program
questioning the link between lung cancer and cigarettes would win; whether members of the Ku
Klux Klan challenging the cancellation of a news report about demonstrations of White
Supremacists in Forsythe County would win; or whether an alleged drug czar challenging the cancellation of a program advocating the legalization of drugs would win.
148. See supra notes 115-24 and accompanying text.
149. See supra notes 125-41 and accompanying text.
Vol. 1989:1386]
strictive means that are readily available."15 0 The following hypothetical
based on the facts in Muir demonstrates this standard's application.
Suppose a number of public television stations in Alabama and
Texas schedule a seasonal broadcast of the PBS program series "World."
A controversial episode of the series, "Death of a Princess," depicts the
July 1977 execution of a Saudi Arabian princess and her commoner lover
for adultery. Government licensees in both states decide to cancel the
program, and viewers sue in federal court for injunctions to compel the
In Alabama, the statewide public television network decides to cancel the program on every state channel as requested by many letters from
Alabama residents. The state licensee makes this decision based on a
widespread belief that the personal safety and well-being of Alabama citizens working in the Middle East would be threatened if the program
were shown.
In Texas, the government licensee of one public station, a University
of Houston official, decides not to broadcast "Death of a Princess" for
other reasons. When questioned about his decision, the licensee offers a
number of government interests and concerns in justification for the cancellation: (1) foreign policy concerns (the Saudi government's strong objections to the broadcast in light of the long-time U.S. friendship with
Saudi Arabia and respect for the volatility of events in the Middle East),
(2) concern for the personal safety of another Saudi princess who had
been educated at the University, (3) uneasiness about the fact that the
program may provide an unbalanced treatment of the incident, (4) fear
that the public might mistakenly believe the "docu-drama" to be a true
documentary and thereby be misled, and (5) respect for the oil industry,
which contributes significant private funds to the University.
In applying the public broadcasting test, a court would first consider
whether any of these asserted reasons count as substantial government
interests. For example, although the Alabama licensee's interest in the
personal safety and well-being of Alabama residents is a government interest, the court might not consider it a substantial interest that would
justify infringing the public's collective first amendment right, since it is
unconnected to the educational mission of Alabama public television. 151
On the other hand, the court might conclude that the station's dedication
to being responsive to public concerns-a legitimate interest that might
150. See supra note 125 and accompanying text.
151. The mission of the stations, in this case, is not the same as the university sponsored public
radio station above. See supra notes 142-46 and accompanying text. The mission of the state-wide
network would be broader because it is commissioned by the state legislature to serve the general
educational needs of the state-wide viewing public.
[Vol. 1989:1386
be asserted based on the many letters sent by viewers-is a substantial
enough government interest.
With respect to the reasons asserted by the Texas licensee, its foreign policy concerns would fail for the same reason that the Alabama
licensee's personal safety and well-being interest failed: Although foreign
policy is a legitimate government interest, it has no relation to the government licensee's interest in furthering the station's mission. Second,
the licensee's concern for the other Saudi princess previously educated at
the University is difficult to evaluate as a public reason, although it may
indicate a well-intended effort to respect the royal family's personal affairs because of past associations. This privacy or loyalty concern probably would not be more substantial than the public's first amendment
right to a balanced presentation because it also is unrelated to the station's mission.
The Texas licensee's final three concerns-for the unbalanced treatment and misleading nature of the program, and deference to the oil industry-probably all constitute substantial government interests. The
government licensee may well have a substantial interest in whether the
program provides a balanced treatment of the incident: Because the licensee has ultimate responsibility to the federal government for the compliance of a station's programming with FCC requirements, he thus has a
substantial interest in providing a balanced schedule of programs. Likewise, the government licensee has a substantial interest in the manner of
presentation of issues of public concern, which may well include an interest in whether viewers perceive the program to be a documentary rather
than a partially fictitious "docu-drama." Both these interests are connected to the station's mission as determined by the terms of its license
and normal operation. Additionally, the government licensee may have
a substantial interest in the program's effect on oil industry contributions
if the industry makes those contributions directly to the station and a loss
of those contributions would threaten the station's ability to continue
operations at all.
Once the government licensee has established a substantial government interest, then it must prove that its restrictive conduct was narrowly tailored to serve those interests. The court could well find that the
government licensees would have been more responsive to the public interest, and its action tailored more narrowly, had it arranged to go ahead
and show the program and then after the program broadcast a debate
involving Saudi experts about standards of morality and women's roles in
royal culture. The licensee also could have run a disclaimer with the
program stating that the program was partially fictitious and not a documentary, thereby alleviating any possible misconceptions. The same con-
Vol. 1989:1386]
cerns about misperception and imbalance would have been served if the
station had aired the views on the other side.
The station's interest in oil industry contributions, however, may
justify cancellation-assuming that an absence of oil money would
threaten the station's continued operation. The station does not have to
commit financial suicide in order to serve the first amendment. A court
faced with this situation, of course, would have to evaluate whether the
licensee had available a less restrictive means, such as explaining to the
contributors the station's decision to broadcast the controversial program. But if the station's need to protect its funding could "not be fully
satisfied by less restrictive means that are readily available," 152 then its
decision not to broadcast would withstand this challenge.
C. ProfessionalEmployees' Claims: Schneider v. Indian River
Community College
The proposed public broadcast test is framed specifically for claims
brought by viewers and listeners against public broadcasters. Since this
test is formulated in terms of the public's right to a balanced presentation, courts must make some adjustments to make the test "fit" when
deciding claims brought by professional broadcast journalists against
government licensees. In these cases the plaintiff, commonly a station
manager or broadcast journalist, asserts that a government licensee's decision abridged employees free speech rights and, derivatively, the public's collective first amendment right to access a variety of ideas.
In evaluating a journalist's free speech rights, courts must account
for a government licensee's considerable interests as a public employer.
Although a state may not condition public employment on infringement
of the journalist's right of free expression, this right is necessarily limited
by the public employer's interest in the public service it performs. 153 In
determining the strength of a journalist's claim, the court should factor
in considerations such as the possible impairment that upholding the
claim would have on discipline by superiors or harmony among co-workers, its detrimental impact on close working relations, or its interference
152. See supra note 125 and accompanying text.
153. See Connick v. Myers, 461 U.S. 138, 154 (1983). The test for public employee speech was
established in Pickering v. Board of Educ., 391 U.S. 563, 568 (1968), and requires that a court
"balance... the interests of the [employee] as a citizen, in commenting on matters of public concern,
and the interest of the State, as an employer, in promoting the efficiency of the public services it
performs through its employees."
[Vol. 1989:1386
with the journalist's ability to perform her duties in the regular operation
1 54
of the station.
In addition to the journalist's individual free speech rights, the
courts must recognize that this claim also represents the public's collective first amendment rights, albeit in a round-about fashion. When the
government is directly involved in editorial decisions about broadcast
content, the professional journalist plays a crucial intermediary role between the government, whose interests sometimes threaten first amendment values, and the public, who retains its first amendment rights even
when the government acts as broadcast licensee.155 In her role as intermediary, the broadcast journalist must juggle carefully her duties as a
loyal public employee with her professional ethic to serve the public interest by making available balanced and accurate information on issues
of public concern. With these duties in mind, the professional journalist
is often in the best practical position to raise a claim against a public
broadcaster who attempts to violate the public's first amendment rights
by cancelling a program for illegitimate reasons. 156 The journalist is familiar with professional standards regarding newsworthy information,
she knows when the government licensee suppresses important stories,
and she is often aware of the true reasons for these suppressions.
The journalist's claim based on her own free speech rights and the
public's first amendment rights presents certain tactical considerations.
Since Supreme Court's decision in League of Women Voters has clarified
the law concerning suits brought by viewers or listeners,15 7 the journalist
might be well advised to have a viewer or listener as a co-plaintiff. The
journalist also should file a claim for an injunction, rather than opting for
a "self-help" remedy against the licensee's direct orders: The fact of insubordination might weigh heavily against her in the later lawsuit. 158
154. Connick 461 U.S. at 570-73; see also Rankin v. McPherson, 483 U.S. 378, 388 (1987)
(court must consider the time, manner, and place of the employees' expression, as well as the entire
155. See supra notes 1-6 and accompanying text.
156. The three hypotheticals only discuss the availability of a cause of action arising from the
cancellation of a program, a situation more easily identified and redressed than a situation in which a
station manager schedules a program addressing one side of an issue and then declines to schedule
one on the other side. In the latter case, the public probably never would know such decision was
made, and the station manager certainly would not bring a claim challenging his own decision.
157. See supra notes 115-24 and accompanying text.
158. Compare Schneider v. Indian River Community College, 875 F.2d 1537, 1540-44 (11th Cir.
1989) (remanding for factual inquiry regrading all first amendment claims, including retaliatory
dismissal) with Schneider v. Indian River Community College, 684 F. Supp. 283, 280, 288-90 (S.D.
Fla. 1987) (granting summary judgment for college on first amendment claims because decision in
favor of plaintiffs would subject licensees "who are ultimately and solely responsible for all programming content, to the whims and wishes of all subordinate, or in this case, insubordinate employees.).
Vol. 1989:1386]
A recent Eleventh Circuit decision, Schneider v. Indian River Community College Foundation, illustrates complications that can arise from
a journalist's claim. 159 In Schneider, the station manager and program
director of a public radio station filed claims against the government licensee, Indian River Community College, alleging that college officials
had attempted to censor a news story about a nearby industrial development because the story would jeopardize potential contributions to the
college foundation. 160 They also contended that the college suppressed
newscasts about a local election because the information might have
damaged the political career of one of the candidates who also was a
close friend of the college president. 161 The station manager and program director went ahead with the broadcasts in violation of the licensee's order, and they were fired because, as the government licensee
argued, employees' insubordination impaired the station's capacity to
fulfill its statutory obligations. 16 2 Although the district court dismissed
the suit and reprimanded the employees for even bringing it,163 the Eleventh Circuit partially affirmed the district court's opinion but reversed
and remanded plaintiffs' claim of retaliatory discharge for further consid64
eration by the trial court.1
The broadcast journalists clearly had a difficult claim to establish in
this case. Under the analysis proposed by this Note, they would have
had an easier case if they had joined a listener as plaintiff and filed for an
injunction before the scheduled broadcast. As the case arose, the journalists' insubordinate act might well justify the government licensee's termination of their employment because of the employer's interest in
efficient broadcasting. 65 With a listener as a co-plaintiff, however, a
court applying the public broadcasting test might have reached the opposite result on the first amendment claims. Under that test, the public's
right to a balanced presentation would require the government licensee
to justify the substantiality of the interest. Moreover, the government
licensee's interest in funding from a local industrial development arguably would not be a substantial government interest because in this case, it
concerned funding for the college foundation and not the station. On the
other point, suppression of local election news would not qualify even as
a government interest because it was done to protect the political career
of the college president's personal friend.
875 F.2d at 1537.
Schneider, 684 F. Supp. at 285.
Id. at 287, 290.
Schneider, 875 F.2d at 1545.
See supra notes 152-53 and accompanying text.
[Vol. 1989:1386
The above hypotheticals illustrate the analysis that courts should
use in deciding first amendment claims against public broadcasters. Such
claims, based on the public's collective right to a balanced presentation
and possibly professional journalists' free speech rights, are well-suited
for the public broadcasting context because they offer an opportunity for
public challenges in federal court of government misconduct. In deciding claims against public broadcasters, the courts should rely on the proposed public broadcasting standard derived from the Supreme Court's
opinion in League of Women Voters and Judge Rubin's special concurrence in the Muir decision.1 66 This standard requires that a licensee
identify a substantial government interest and narrowly tailor its infringing conduct to serve that interest. 167 The substantiality of a government
interest would be assessed in view of the station's mission as determined
from its normal operation and the terms of its license.
Claims based on the public's right to a balanced presentation also
would serve important policy interests. This cause of action leaves the
initiative for complaints with the injured parties and thus shifts some of
the more controversial duties of the FCC back to members of the public,
the persons most interested in protecting their own first amendment
rights. Permitting claims in federal court also checks a government licensee's impropriety, thereby promoting a system of public broadcasting
that efficiently and effectively serves the public interest. Finally, the potential for viewers and listeners to sue in federal court will encourage
public stations to act responsibly as "public trustees" when operating
outside the corrective mechanisms of the market. Although government
licensees' fear of future litigation could produce a "white bread" effect,
thereby decreasing diversity on the airwaves, the possibility of such an
effect is not compelling enough to allow the government licensee complete discretion over the public's first amendment rights.
The court's recognition of these claims also would help balance the
need to check the government's abuse of discretion and the public's interest in accessing ideas. Public radio and television stations perform an
important service by providing a menu of programs unmatched by commercial stations, contributing in an important way to diversity on the
airwaves. But the public must retain some control over its first amendment rights when the government assumes the role of broadcaster, and
166. FCC v. League of Women Voters, 468 U.S. 364 (1984); Muir v. Alabama Educ. Television
Comm'n, 688 F.2d 1033 (5th Cir. 1982) (Rubin, I., specially concurring), cert. denied, 460 U.S. 1023
167. See supra notes 115-24 and accompanying text.
168. See supra notes 125-37 and accompanying text.
Vol. 1989:1386]
these private initiative lawsuits would serve the public's interests more
effectively than the present FCC regulatory scheme. By recognizing
these claims and reducing government regulation, the application of the
first amendment to public broadcasting cases would parallel general first
amendment doctrine more closely.
Rebecca L. Torrey